Quebec & Kashmir

Quebec's Liberal Premier Jean Charest announces general elections for March 26, at the Quebec legislature on February 21, as his wife Michelle Dionne (left) watches.-JACQUES BOISSINOT/AP Quebec's Liberal Premier Jean Charest announces general elections for March 26, at the Quebec legislature on February 21, as his wife Michelle Dionne (left) watches.

India must heed the lessons from the spirit and skills that underlay Canada's efforts at nation-building.

ON November 27, 2006, the House of Commons of Canada passed by a massive vote - 265 for, 16 against, and four absentees - a motion which declared: "That this House recognise that the Quebecois form a nation within a United Canada." This did not mark a victory for the separatist Parti Quebecois (P.Q.), which its founder Rene Levesque had led to power in the predominantly French and Roman Catholic province of Quebec 30 years ago on November 16, 1976. The vote registered its defeat, the triumph of Canadian nationalism and of the values on which it is based. Respect for diversity is chief among them.

Between the electoral triumph of 1976 and the vote of 2006 lies a record of national statesmanship and judicial fairness and creativity that has few parallels anywhere else.

No two situations are alike. An India split into two on the basis of a false and poisonous two-nation theory, which few now uphold even in Pakistan, cannot and should not contemplate any such move in the course of its efforts at nation-building. But what India can and must heed are the lessons from the spirit and skills that underlay Canada's efforts at nation-building. Not only India's political class and its academia and media, but its lawyers and judges would also profit by it. The Supreme Court of Canada rose to the challenge of secession and contributed to successful political solutions by its manifest fairness, a liberal approach, judicial erudition and creativity of the highest order. Quebec holds lessons we can apply to Kashmir, Nagaland and other areas where we face separatist movements.

Thanks to the liberal approach that Indian leaders adopted towards the Dravidian movement, the Dravida Munnetra Kazagham and the All India Anna Dravida Munnetra Kazagham have emerged as champions of Indian democracy and federalism. It is a success story to which C.N. Annadurai, a real statesman, contributed. Had the Congress leaders listened to C. Rajagopalachari, or Rajaji, a leader vastly more far-sighted than any of the trio - Gandhi, Jawaharlal Nehru or Vallabhbhai Patel - India would not have been partitioned.

It would astonish people to recall today that on April 23, 1942, he got the Madras Legislature Congress Party to pass, after a six-hour debate, a motion that said that to facilitate the formation of a "National Government" in order to resist "invasion by enemy power", it had become necessary to "choose the lesser evil and acknowledge the Muslim League's claim for separation, should the same be persisted in when the time comes for framing the Constitution for India, and thereby remove all doubts and fears in this regard, and to invite the Muslim League for consultation for the purpose of arriving at agreement and securing (sic) of a National Government to meet present emergency" (The Transfer of Power; 1942-7; Volume I, page 842; emphasis added, throughout).

The italicised qualification reflected a shrewd calculation, which he bared to Prof. Reginald Coupland, adviser to Stafford Cripps, whose proposals were rejected by the Congress and the League. They permitted a Province not to accede to the Union if it so desired. Rajaji wanted to confront Mohammad Ali Jinnah with an open door to leave and face the consequences early in the day. "Two leading Congressmen" agreed with this approach (The Cripps Mission; Coupland; page 36). The Congress, at Gandhi's prodding, missed another chance when it wrecked the Cabinet Mission's Plan (1946) based on a Union of three groups of Provinces, with the right to secede from the group, but not from the Union.

After Independence, the same folly governed policy. Kashmir was robbed of its guaranteed autonomy. In Canada, Quebec was granted greater autonomy than it enjoyed under the Constitution. Kashmir was promised a plebiscite, as was Pakistan. This was recorded in United Nations resolutions. It was never held, because our policies ensured defeat in the plebiscite. The Government of Quebec held two referenda. Separatists lost both. On May 20, 1980, a proposal that was broadly for "sovereignty-association" (economically) was rejected by a 59.56 per cent vote. The supporters polled 40.44 per cent votes; 85.61 per cent of total voters participated. In 1981, the same electorate returned the P.Q. to power. It is important to read results of elections to legislatures - as distinct from those of referenda or plebiscite - correctly; more so of elections rigged or centrally influenced, as in Kashmir. On October 30, 1995, a similar proposition was defeated by 50.58 per cent to 49.42 per cent; 93.52 per cent of the voters participated. In Canada, what we dub as "secessionists" or "separatists" are called "sovereignists".

Quebec's Premier Jacques Parizeau resigned and was succeeded by Lulien Bouchard. In 1990, he had formed a federal party, the Bloc Quebecois, which won 54 seats in Parliament in 1993. After the referendum, support for sovereignty declined. In 2003, the P.Q. lost to Jean Charest's Liberals. Support for "sovereignty-association" is weak, weaker still for independence alone. Repeated referenda are as dangerous as Russian roulette. (On March 26, Quebec will go to the polls and its Liberal Premier Jean Charest will seek a mandate against separatism.)

The Conservative Party of Canada won the 2006 elections to Parliament and also in Quebec. Why, then, did Prime Minister Stephen Harper propose the motion last November? Because the Bloc Quebecois set a "lobster trap" - table a motion that the Quebecois form a nation and argue that the consequence is separation. Harper's description of the game was telling: "It is to recognise not what the Quebecois are but what the sovereignists would like them to be." The Liberal Opposition led by Bill Graham supported him fully. Harper used the word nation in a "cultural-sociological", rather than a legal, sense. The Bloc Quebecois first proposed an amendment - "currently within Canada" - and then decided to support the motion. Its leader Gilles Duceppe spoke of a "so-called united Canada" only to urge that "there can be a nation within Canada ... we are what we are".

It was an historic debate. The Minister of the Economic Development Agency of Canada for the Region of Quebec, Jean-Pierce Blackburn, recalled that Quebec had its own civil code based on the Code Napoleon, different from the law in the rest of Canada. There is no clamour in Canada for "a uniform civil code". It has its own Charter of Rights and Freedoms; collects its own income-tax; chooses its own immigrants; participates in the summits of Francophone countries; and is a member of the national delegation to United Nations Educational, Scientific and Cultural Organisation. It negotiates directly with foreign states in certain areas and has its own TV network, Tele-Quebec.

Dipak Obhrai, Parliamentary Secretary to the Foreign Minister, gave a stirring speech. Lawrie Hawn said: "Today's Catalonia within Spain, today's India, all are clear success stories of different nations and nationalities prospering under unifying political institutions."

Canada was originally founded as a French colony in 1608. It came under British rule by the Treaty of Paris, 1763. The colonists were known as "Canadiens". The Quebec Act, 1774, recognised French law and language and the Catholic faith. The provinces of Ontario and Quebec were included in "the Province of Quebec". The Canada Act, 1791, divided them as Upper and Lower Canada, respectively. However the Union Act, 1840, reunited them as East and West Canada. Both sought dissolution. A move by other provinces led both to join a convention, which adopted 72 resolutions that led to the enactment of the British North America Act, 1867. It served as Canada's federal Constitution until 1982, uniting 10 provinces and three territories. Quebec is the largest in area.

Since the Act of 1867 could be amended only by the British Parliament, the Prime Minister and all the premiers of the provinces agreed in 1968 to seek "patriation" of the Constitution from London to Ottawa so that its own Parliament could amend the Constitution, besides renewing its provisions to accord with the times, and adding a Charter of Rights and Freedoms. Prime Minister Pierre Trudeau set July 1, 1981, as the target date. He sought affirmation of citizen's rights, Canada's identity, cooperative federalism, and full respect for the rights of the aborigines, and so on. Quebec countered Ottawa's Statement of Policy of June 7, 1978, with a manifesto in late 1979 on "sovereignty-association" and proposed a referendum on it.

Trudeau's amending formula disturbed the provinces. More so when he decided to seek patriation without their consent by introducing a joint address to the Queen in the House of Commons on October 6, 1980. Quebec and two other provinces challenged the move in their courts. Ottawa referred the matter to the Supreme Court of Canada, which ruled that while the move was legal, by constitutional convention a "substantial degree" of provincial consent was necessary before the federal relationship could be altered fundamentally by a request to London. (Re: Amendment to the Constitution of Canada (1981) 125 D.L.R (3d.)1. It was cited approvingly by the Supreme Court of India in its ruling that constitutional conventions could be enforced by the courts - S.C. Advocates on Record Assn. vs Union of India (1993) 4 Scc 441 at 656.) Trudeau had no intention of disturbing the existing division of union-province relationship.

Ottawa convened another first ministers' conference on November 2, 1981. With the exception of Quebec, all agreed on a package of constitutional reforms, including the patriation of the Constitution; an amending formula; a charter of rights and freedoms; a commitment to equalisation; the strengthening of provincial control over natural resources; and the recognition and affirmation of the existing rights of Canada's aboriginal peoples. However, Quebec continued to dissent.

Parliament adopted the Resolution on the Address to the Queen. It was taken to London by the Secretary to the Governor-General. Meanwhile, the Foreign Affairs Committee of the United Kingdom's House of Commons inquired into the role of the U.K's Parliament in the matter. Its proceedings provide a feast for constitutional lawyers. Jurists of the highest eminence like Prof. H.W.R. Wade, Geoffrey Marshall and E. Lauterpacht gave evidence. (First Report from the Foreign Affairs Committee; Session 1980-81; British North America Acts: The Role of Parliament; Vols. I and II; minutes of December 3 and 10, 1980, contain the jurists' views.) On April 17, 1982, the Constitution Act, 1982, became law. It contains the Charter of Rights and Freedoms. The Supreme Court ruled that legally it bound Quebec.

Two unsuccessful attempts at overall accord followed; at Meech Lake on April 30, 1987, and at Charlettetown on August 28, 1992. Quebec held its second unsuccessful referendum in 1995. Ottawa participated in it. Prime Minister of Canada Jean Chretien of the Liberal Party promised to recognise Quebec as a distinct society and not to make any constitutional changes without its consent. On November 29, 1995, he said: "We reject the idea that a country must require its citizens to have a single, uniform identity." On constitutional amendment, he had "always supported a veto for Quebec". The House resolved to "recognise that Quebec is a distinct society within Canada" which "includes its French-speaking majority, unique culture and civil law tradition". On December 13, 1995, the House passed a Bill conferring a veto on constitutional amendments without the approval of a majority of the provinces, which would include Ontario, British Columbia, Quebec and at least two each of the Atlantic and Prairie Provinces.

But Quebec was set on confrontation. Its Attorney-General told the Supreme Court of Quebec on April 16, 1996, that the process of seeking independence "is sanctioned by international law and the superior Court has no jurisdiction in this respect". The federal government intervened in the case to challenge this claim. After the Court determined that the case could proceed, the Attorney-General withdrew, whereupon the Governor-General referred the issue to the Supreme Court of Canada for its advisory opinion.

It was given on August 20, 1998, in response to three questions, which were:

1. "Under the Constitution of Canada, can the National Assembly, legislature or government of Quebec effect the secession of Quebec from Canada unilaterally?"

2. "Does international law give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally? In this regard, is there a right to self-determination under international law that would give the National Assembly, legislature or government of Quebec the right to effect the secession of Quebec from Canada unilaterally?"

3. "In the event of a conflict between domestic and international law on the right of the National Assembly, legislature or government of Quebec to effect the secession of Quebec from Canada unilaterally, which would take precedence in Canada?"

The Court's judgment is a classic of its kind. It drew a clear distinction between legality and legitimacy: "Legal continuity, which requires an orderly transfer of authority, necessitated that the 1982 amendments be made by the Westminster Parliament, but the legitimacy, as distinguished from the formal legality of the amendments, derived from political decisions taken in Canada within a legal framework which this Court, in the Patriation Reference, had ruled were in accordance with our Constitution. To be accorded legitimacy, democratic institutions must rest, ultimately, on a legal foundation. That is, they must allow for the participation of, and accountability to, the people, through public institutions created under the Constitution. Equally, however, a system of government cannot survive through adherence to the law alone. A political system must also possess legitimacy, and in our political culture, that requires an interaction between the rule of law and the democratic principle. The system must be capable of reflecting the aspirations of the people. But there is more. Our law's claim to legitimacy also rests on an appeal to moral values, many of which are imbedded in our constitutional structure. It would be a grave mistake to equate legitimacy with the `sovereign will' or majority rule alone, to the exclusion of other constitutional values."

There was a "basic constitutional structure", the Court had ruled in 1987. Four foundational principles were relevant - federalism, democracy, constitutionalism and the rule of law and respect for minority rights. They "function in symbiosis". Each principle was applied to the questions before the court. "The principle of federalism facilitates the pursuit of collective goals by cultural and linguistic minorities which form the majority within a particular province. This is the case in Quebec, where the majority of the population is French-speaking, and which possesses a distinct culture." The relationship between democracy and federalism means, for instance, that "in Canada there may be different and equally legitimate majorities in different provinces and territories and at the federal level". No one majority is more or less "legitimate" than the others. As an expression of democratic opinion, though, the consequences will vary with the subject matter. "A federal system of government enables different provinces to pursue policies responsive to the particular concerns and interests of people in that province, a functioning democracy requires a continuous process of discussion."

The Court added: "Our belief in democracy may be harmonised with our belief in constitutionalism. Constitutional amendment often requires some form of substantial consensus precisely because the content of the underlying principles of our Constitution demand it."

Secession is a legal as well as a political act. It entails amendment to the Constitution "which perforce requires negotiation". Referenda and negotiation go together. Unilateralism has no place. "The democratic principle identified above would demand that considerable weight be given to a clear expression by the people of Quebec of their will to secede from Canada, even though a referendum, in itself and without more, has no direct legal effect, and could not in itself bring about unilateral secession." A referendum must bring all to the negotiating table, where all must be guided by those four principles.

"We are equally unable to accept the reverse proposition, that a clear expression of self-determination by the people of Quebec would impose no obligations upon the other provinces or the federal government. The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognised principles necessarily trump the clearly expressed democratic will of the people of Quebec. Such a proposition fails to give sufficient weight to the underlying constitutional principles that must inform the amendment process, including the principles of democracy and federalism. The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others. Negotiations would be necessary to address the interests of the federal government, of Quebec and the other provinces, and other participants, as well as the rights of all Canadians both within and outside Quebec."

It was a balanced, statesmanlike approach. Both propositions are reconcilable - the right to seek change and the duty to negotiate as well as the duty of the rest of the nation to negotiate a solution. It is not for the Court to decide what should happen if there is an impasse.

In the result, "the secession of Quebec from Canada cannot be accomplished by the National Assembly, the legislature or government of Quebec unilaterally, that is to say, without principled negotiations, and be considered a lawful act. Any attempt to effect the secession of a province from Canada must be undertaken pursuant to the Constitution of Canada, or else violate the Canadian legal order. However, the continued existence and operation of the Canadian constitutional order cannot remain unaffected by the unambiguous expression of a clear majority of Quebecers that they no longer wish to remain in Canada. The primary means by which that expression is given effect is the constitutional duty to negotiate in accordance with the constitutional principles that we have described herein. In the event secession negotiations are initiated, our Constitution, no less than our history, would call on the participants to work to reconcile the rights, obligations and legitimate aspirations of all Canadians within a framework that emphasises responsibilities as much as it does constitutional rights."

International law gives no such right of secession either; but nor does it deny the right. It does recognise, however, a "people's" right to self-determination. The Court said: "There is no necessary incompatibility between the maintenance of the territorial integrity of existing states, including Canada, and the right of a `people' to achieve a full measure of self-determination. A state whose government represents the whole of the people or peoples resident within its territory, on a basis of equality and without discrimination, and respects the principles of self-determination in its own internal arrangements, is entitled to the protection under international law of its territorial integrity."

Oppression alone can give the right of self-determination and Quebec was not oppressed. It had no right "under international law to secede unilaterally from Canada".

Indian lawyers must face the harsh reality by asking themselves a straight question. Could the Supreme Court of India have ruled on a similar issue in a similar spirit with equal erudition? Judging by its two main rulings on Article 370, the answer can only be in the negative. A liberal ruling was overturned by an illiberal one, without any reference to the earlier case. Justice M. Hidayatullah was a member of both Benches. The Court's rulings on Terrorist and Disruptive Activities (Prevention) Act, the Armed Forces Special Powers Act and similar laws show the triumph of patriotic fervour over commitment to the rule of law. We get bad law in bad English.

Quebec, which did not participate in the Supreme Court's proceedings, was embarrassed by the nuances of the ruling. Ottawa did not leave well alone. It had participated in the referenda and won the Court's verdict. In 2000, it got enacted the Clarity Act, avowedly to give effect to the Court's judgment. Its sponsor was Stephane Dion, Minister for Intergovernmental Affairs and former political scientist at the University of Montreal. The Act prescribed conditions for "the clarity of a referendum question" and precluded negotiations if that was lacking. Also, if there was not "a clear expression of a will by a clear majority of the population of a province that the province cease to be part of Canada". This rules out Quebec's pleas of "sovereignty-association" and a narrow majority in a secession vote. The Act was greeted with a howl of protest in Quebec. A Bill was moved in its National Assembly that its people "alone" had the right to decide "the legal status of Quebec" and to do so by a 51 per cent vote.

Plebiscite in Kashmir became a dead proposition years ago. But the alienation of its people can be best removed by accepting diversity within the Union of India in the liberal spirit that Canada has shown towards the people of the Province of Quebec all these years.